Citation Nr: 20021465 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 09-32 095A DATE: March 25, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran currently meets the schedular requirements for assignment of a TDIU. 2. Resolving all reasonable doubt in the Veteran’s favor, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1994 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2012, the Veteran testified during a Board hearing before the undersigned. A transcript of that hearing is of record. In November 2015, the Board remanded the appeal for additional development. TDIU A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has established service connection for major depressive disorder, rated 50 percent disabling; eczema of both hands, rated 30 percent disabling; temporomandibular joint dysfunction, rated 20 percent disabling; left knee meniscus tear with instability status post arthroscopies and partial meniscectomies, rated 20 percent disabling; asthma, rated 10 percent disabling; let knee degenerative changes, rated 10 percent disabling; lumbar spine degenerative disc disease and degenerative joint disease, rated 10 percent disabling; allergic rhinitis, rated 10 percent disabling; left forehead scar residuals of laceration, rated 10 percent disabling; residual surgical scarring left knee, rated 10 percent disabling; left lower extremity radiculopathy, sciatica, rated 10 percent disabling; right lower extremity radiculopathy, sciatica, rated 10 percent disabling; right hand scars, rated noncompensably disabling; and fracture right ribs, rated noncompensably disabling. The Veteran’s combined rating for compensation purposes was 50 percent beginning March 23, 2007, 70 percent beginning July 31, 2007, 80 percent beginning April 25, 2008, and 90 percent beginning September 30, 209 (irrespective of temporary total ratings based on convalescence). Significantly, the appeal period in this case began as early as March 23, 2007. Therefore, he has met the threshold criteria for a TDIU during only part of the appeal period. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A review of the record shows that the Veteran last worked full-time in November 2003 as a carpenter. He then worked part-time as a “helper” and a stage manager until approximately October 2006. Notably, the totality of the record illustrates significant limitation of motion due to the Veteran’s service-connected left knee and lumbar spine disabilities, likely to cause significant hardship in performing physical tasks. In this regard, a January 2011 VA examiner found that the Veteran’s service-connected left knee disability resulted in “decreased mobility, problems with lifting and carrying,” as well as “decreased strength [in the] lower extremity,” which had an impact on occupational activities. The January 2011 VA examiner found occupational impairment as result of the service-connected lumbar spine disability as well, to include “problems with lifting and carrying,” likely to cause significant difficulty in performing physical tasks essential to most occupations. While, a July 2016 VA medical opinion found that there were no functional limitations on the Veteran’s ability to function in an occupational environment due to his combined service-connected disabilities, July 2016 VA knee, spine, and peripheral nerve examiners did find functional impairment due to the service-connected left knee, lumbar spine, and peripheral nerve disabilities, including “difficulty sitting/standing for long periods [and] walking distances,” consistent with the January 2011 VA examiner’s findings. Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran’s service-connected disabilities make him unemployable. As above, the January 2011 and July 2016 VA opinions found impairment sufficient to note that the Veteran’s service-connected disabilities affect his ability to secure substantially gainful employment, specifically if it was manual labor. While sedentary work has not been ruled out by physicians, the determination of unemployability for VA purposes is a legal determination. Given the unskilled labor the Veteran has performed previously, the Board finds that he does not currently possess the skills to obtain and sustain a sedentary job. Therefore, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability and, therefore a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Board will allow the agency of original jurisdiction to assign the effective date in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). If the Veteran disagrees with the effective date, he will have the opportunity to appeal that assignment. April Maddox Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.